STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1472

)

WILLIAM TERRY WOODWARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings, on May 24 and 25, 1983, in Jacksonville, Florida. This Recommended Order is being entered following the receipt and review of the transcript of proceedings and the associated transcript in the criminal court action against the Respondent in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Case No. 81-2571-CF, Division W. In addition, the parties in the person of counsel have offered proposed Recommended Orders. Those proposals have been reviewed prior to the entry of this Recommended Order. To the extent that the proposals are consistent with the Recommended Order, they have been utilized.

To the extent that the proposals are inconsistent with the Recommended Order, they have been rejected as being irrelevant, immaterial, contrary to facts found, contrary to legal conclusions drawn or contrary to the recommended disposition in this case. In addition, a session in oral argument was held on September 9, 1983, and those remarks have been considered. Finally, the last installment of late filed exhibits was received on November 1, 1983, and examined.

APPEARANCES

For Petitioner: Henry M. Coxe, III, Esquire,

Daniel A. Smith, Esquire

204 Washington Street Jacksonville, Florida 32202

For Respondent: Edward M. Booth, Esquire,

Charles W. Arnold, Jr., Esquire and

B. Lamar Winegeart, III, Esquire 2508 Gulf Life Tower Jacksonville, Florida 32207

ISSUES

The issues presented in this cause are promoted through an Administrative Complaint brought by the Petitioner against Respondent dating from April 18, 1983. By that Complaint, Respondent is charged with various violations of Chapters 455 and 466, Florida Statutes and Rule 21G-14.04(4), Florida

Administrative Code. In particular, it is contended that Respondent in the course of the treatment of dental patients committed various acts of misconduct with those three female patients. These accusations include sexual misconduct, administration of nitrous oxide to himself, consuming beer while treating patients, and bribery.

FINDINGS OF FACT

1. At all times pertinent to these proceedings, Respondent, William Terry Woodward, has held a current and valid license from the Board of Dentistry in Florida. That license number is 0004046. During the relevant times of this Administrative Complaint, Respondent was practicing dentistry at 2425 West University Boulevard, Jacksonville, Florida.

   
   

   SHERRY MARTIN

   
   

2. Respondent had treated Sherry Martin as his dental patient beginning 1977 through the initial part of 1981. In February, 1931, Martin had four teeth extracted by the Respondent. In all, Martin saw the Respondent approximately five or six times related to the extractions. Two visits involved the extraction of the teeth and the other visits concerned the placement of packing and the removal of that packing associated with the suturing of the wounds.

   
   

3. One of the visits by Mrs. Martin occurred on March 3, 1981. She had made arrangements for this visit by contacting the office of the Respondent on the morning of March 3, 1981. She was given an appointment for late that afternoon. The purpose of the visit was to have packing examined where food had been trapped in the location of one of the extractions. Her specific complaint was that her gum had grown over the packing. Martin arrived at the Respondent's office at approximately 5:00 p.m. Subsequent to her arrival, a dental assistant placed Martin in an area referred to as the "middle treatment room." Martin was the last patient to be seen by Dr. Woodward on this date. In addressing the problem with the packing which was involved with a dry socket experienced by the patient, Respondent elected to utilize nitrous oxide to sedate the patient.

   This was an appropriate choice of anesthesia. While treating the patient on this date, Respondent was drinking a beer in her presence and inquired of Mrs. Martin if she would have opposition to this consumption and she responded she would not. The treatment course started at approximately six o'clock and lasted for more than an hour. During the course of the treatment, Martin was moved from the "middle treatment room" to the "end treatment room" for the conduct of the procedure. While providing this treatment, Respondent was not attended by any other person and the lights in the "end treatment room" were off. In this regard, the last remaining office worker, a cleaning woman, left the office building prior to the conclusion of the treatment. Dr. Woodward's father was in and out of the office building while involved in mechanical repairs on a well and pump which served the Respondent's office building. He, as was the case with Regina Gullman, the cleaning woman, was not in the building during the entire course of the treatment of Sherry Martin. While the treatment was being given to Martin, there were interruptions related to conversations in the office dealing with Respondent's father's work and a telephone call which took fifteen to twenty minutes for the Respondent to conclude. This call dealt with air conditioning problems being experienced in the office. Respondent also left the building to examine his father's repair work. Eventually, the Respondent addressed the irritation which Martin was complaining about by removing the packing and washing out the socket where the tooth had been extracted.

4. While Martin was undergoing treatment on March 3, 1981, she claims to have been undressed and sexually assaulted by the Respondent and to have seen the Respondent use nitrous oxide on himself. At the time of the sexual assault, Mrs. Martin states that her clothes had been removed and that she was nude and Dr. Woodward was on top of her while she was reclined in a dental treatment chair and he was having intercourse with her. No corroborative testimony from other witnesses, nor tangible evidence in corroboration was offered in support of these allegations made by the witness Martin. Expert opinion testimony relating to the debilitating properties of nitrous oxide, the physical examination of Mrs. Martin and effects, and lay testimony have been reviewed in an effort to determine the veracity of Mrs. Martin's claims. After weighing that evidence, the proof is not convincing that the facts referred to in this paragraph concerning the actions of the Respondent transpired.

   
   

   MARGARET WRIGHT

   
   

5. Margaret Wright was seen as a patient of the Respondent beginning in the fall of 1980. On November 4, 1980, Wright was seen by the Respondent for treatment respecting a permanent plate. Specifically, Woodward fitted and placed the permanent plate. This procedure took between forty-five minutes and an hour. The time of the treatment was late in the afternoon. Nitrous oxide was used to comfort the patient when her teeth were being ground to facilitate the installation of the partial plate. The utilization of nitrous oxide was an appropriate choice of anesthesia. While the treatment was being administered to Mrs. Wright, no other office staff personnel were present with Dr. Woodward and the lights were off. Before removing the mask through which the nitrous oxide was being administered, Woodward kissed the patient Wright on the cheek and asked her if she minded if he had a beer. She replied that she did not and he left the room and returned with a beer. He then removed the mask and helped the patient stand up by the treatment chair. Woodward then stood up against the counter in the patient treatment room, with his back to it, and pulled Wright toward him and put his arms around her and kissed her on the mouth. Wright had not encouraged Woodward's advances and pushed Woodward away. This embrace was seen by the cleaning woman, Regina Gullman. Wright asked Woodward who the individual was, to which he replied, "Did she see us?", and Wright stated that she did. It was around 7:30 p.m. when the patient left the building with Dr. Woodward. Wright had asked the Respondent to give her a ride home because it was raining hard and her son, who had brought her to the office, had left. When they exited through the kitchen area, Regina Gullman, the cleaning girl, was still in the office. A man was observed outside the office next door when they had exited through the back door of Dr. Woodward's office, and Woodward pushed Wright back into his office. Wright then asked the Respondent if he was allowed to have patients after hours and he replied, "I just don't want any talk started." Respondent and Wright waited for a few minutes until the individual had gone back in the other office building. They then went to the Respondent's car and he took Wright home. When they arrived at the patient's home, Woodward asked her if she would like to have dinner with him some time and she told him to come see her at work and she would talk to him. She told Woodward that she worked at a restaurant. Woodward did, in fact, come and see her.

   
   

   ANNA S. GERMAIN

   
   

6. Anna S. Germain was a dental patient of the Respondent's, who had been fitted for braces by the Respondent. On one visit in early 1981 for the purpose of making adjustments to the orthodontics, particularly related to an arch wire, Germain was seen by the Respondent at approximately 4:30 p.m. in the afternoon. Nitrous oxide was used on the patient for purposes of comfort while Respondent

   was installing a new arch wire. While the nitrous oxide gas was being administered to the patient, Shirley Black, the receptionist, came to the treatment room and told Dr. Woodward goodnight and left the office. During the course of this treatment of the patient Germain, Dr. Woodward was unattended by other office personnel. The Respondent asked Germain if she minded if he got a beer, and she replied "no." Respondent left the room and returned with a beer. He then continued his work on the patient and while leaning over her, kissed her on the mouth. The patient pushed him away and indicated that she did not appreciate his advances. Respondent replied that he "had wanted to do that for a long time." The overture by Dr. Woodward was not solicited. At the time Woodward kissed her, she could taste beer on his breath. This established the fact that he drank a beer in her presence while she was undergoing treatment.

   Woodward finished the adjustments to the braces and the patient left the office.

   
   

7. On a subsequent date, following the incident referred to in the prior paragraph, Germain returned to the Respondent's office to pay an outstanding bill of her grandmother's owed to the Respondent. Woodward spoke to Germain in the office and then followed her out to her car. He then asked her if she had heard about the news of his successful defense in the criminal court related to Sherry Martin. Germain responded that she had, in that her mother had told her about it. Woodward asked Germain if anyone had come to see her, an attorney or someone from the Department of Regulation, and she replied that they had not. He told her that if anyone did come to see her, that she was to forget what had happened in the incident of early 1981 reported above and that he would take care of her outstanding dental bill. At that time, that dental bill was approximately $800.00. In this conversation, Woodward encouraged Germain to reply to questions to the effect, "You don't know anything."

   
   

   DR. JOHN R. HOLLAND

   
   

8. Dr. John R. Holland is a practicing dentist in Jacksonville, Florida, the community in which the Respondent practices. As a consequence, Dr. Holland was qualified for purposes of establishing community standards for dental care within the dental community of Jacksonville, Florida, related to acceptable standards of ethical and professional conduct for dentists within that community. Dr. Holland is a graduate of Florida State University and the University of North Carolina Dental School. He has practiced general dentistry in Jacksonville for approximately nine years and is a member of various societies and associations related to the practice of dentistry. His testimony established that kissing patients while treating those patients, drinking beer in the presence of those patients while they are undergoing treatment, treating a patient using nitrous oxide with no one in attendance and turning off the lights during the course of treatment with no one in attendance, constitute violations of acceptable ethical and professional standards related to the Jacksonville dental community. This testimony was based upon hypothetical questions related to facts pertaining to the patients Martin, Wright, and Germain.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action pursuant to Section 120.57, Florida Statutes.

   
   

10. By Count I of the Administrative Complaint, Respondent is accused of drinking a beer in the presence of his patient Martin, administering excessive quantities of nitrous oxide to Martin, sexually molesting Martin while her

    clothing was removed, and administering nitrous oxide to himself in her presence, all as part of an alleged violation of Section 466.0218(1)(k), Florida Statutes related to the intentional touching of the sexual organ of a patient.

    The proof was not sufficient to establish a violation related to the touching of the sexual organ of the patient Martin.

    
    

11. Count II reasserts the factual allegations of Count I and accuses the Respondent of a violation of Section 466.027, Florida Statutes related to sexual misconduct by the use of the dentist-patient relationship to engage or attempt to engage in sexual activity with Martin outside the scope of the practice of dentistry or the scope of generally accepted examination or treatment of the patient. Again, this allegation of sexual misconduct has not been proven.

    
    

12. Count III realleges factual matters associated with Count I and adds to those factual claims the contention that Martin was receiving prolonged dosages of nitrous oxide behind closed doors for an excessive period of time after regular business hours with no other office staff present. These matters allegedly constitute a violation of Section 466.028(1)(u), Florida Statutes in that Respondent is guilty of misconduct in the practice of dentistry. That misconduct has been shown to the extent that Respondent drank a beer in the presence of his patient and administered nitrous oxide to the patient at a time when his office staff was not present. Other allegations made in this Count have not been proven. For this violation, Respondent is subject to the penalties set forth in Section 466.028(2), Florida Statutes.

    
    

13. Count IV realleges those factual allegations announced in Count I and indicates that Respondent has violated Section 455.227(1)(b), Florida Statutes, by his intentional violation of Rule 21G-14.04(4), Florida Administrative Code, in that he administered nitrous oxide to himself. It was not proven that Respondent administered nitrous oxide to himself. Moreover, that language within Rule 21G-14.04(4), Florida Administrative Code, which states, "Nothing in this Rule shall be construed to allow a dentist or dental hygienist or auxiliary to administer to himself or to any person other than in the course of the practice of dentistry, any drug or agent used for anesthesia, analgesia or sedation" warns the practitioner against such unauthorized utilization but does not establish any substantive prohibition against that conduct.

    
    

14. Count V accuses the Respondent of administering nitrous oxide to Wright and while in her presence, drinking a beer. It also indicates that Wright deceived an excessive dose of nitrous oxide for a long period of time and during most of the time no other office professional was in attendance.

    Further, it is alleged that while under the influence of nitrous oxide, Respondent kissed the patient on her cheek and then pulled her to him and kissed her on the mouth against her will. Based upon these factual accusations, Respondent is said to have violated Section 466.028(1)(u), Florida Statutes, in that he is guilty of misconduct in the practice of dentistry. It has been shown that after the administration of nitrous oxide to the patient Wright, in the patient room, Respondent had a beer in the presence of that patient. It has also been established that the Respondent treated this patient with nitrous oxide at a time when no other office staff was present in the treatment room.

    Finally, it has been established that the Respondent kissed the patient on her cheek and in addition pulled her to him and kissed her on on the mouth. These actions by Respondent in kissing the patient were not acceptable to her. No other allegations as set forth in this Count of the Administrative Complaint have been established. Based upon those matters that are found, Respondent is guilty of misconduct in the practice of dentistry as defined in Section

    466.028(1)(u), Florida Statutes. For this violation Respondent is subject to the penalties set forth in Section 466.028(2), Florida Statutes.

    
    

15. Count VI makes allegations related to the treatment of Anna S. Germain to the effect that she was administered excessive doses of nitrous oxide, that Respondent drank beer in her presence and that against her will while she was under the influence of nitrous oxide Respondent kissed her on the mouth. It is also indicated in the Count that no other professional office staff was present on the premises. For reasons of these allegations, Respondent is said to have violated Section 466.020(1)(u), Florida Statutes, in that he was guilty of misconduct in the practice of dentistry. Respondent did in fact drink a beer in the presence of the patient while treating her, and kissed her on the mouth without her consent. During the course of her treatment, no other professional office staff was present in the treatment room. Those matters constitute misconduct in the practice of dentistry by the Respondent as defined in Section 466.028(1)(u), Florida Statutes. Other allegations concerning misconduct as set out in this Count have not been proven. For this violation, Respondent is subject to the penalties set forth in Section 466.028(2), Florida Statutes.

    
    

16. Count VII alleges that the Respondent, on knowing that a lawful investigation would be conducted by the Department of Professional Regulation for the Board of Dentistry, followed Germain out of the Respondent's office and told her not to say anything to the Department about the matters alleged in Count VI of the Administrative Complaint. Further, it is alleged that Respondent offered to "take care of" the outstanding $800 dental bill of Germain in return for her silence or denial. This action on the part of the Respondent purportedly violates Section 466.028(1)(u), Florida Statutes in that Respondent is guilty of fraud in the practice of dentistry. In fact, Respondent, in the face of possible investigation of the matters alluded to in Count VI asked Germain to deny that the incident had occurred and offered to pay her outstanding dental bill in exchange. This was an act of fraud in the practice of dentistry within the meaning of Section 466.028(1)(u), Florida Statutes. For this violation, Respondent is subject to the penalty set forth in Section 466.028(2), Florida Statutes.

    
    

17. Count VIII is a recap of the various factual allegations set forth in Counts I through VII and asserts that the Respondent had violated Section 466.028(1)(bb), Florida Statutes through repeated violations' of Chapter 466, Florida Statutes and Rule 21G-14.04(4), Florida Administrative Code. Respondent is in fact guilty of repeated violations of Chapter 466, Florida Statutes as established in the preceding conclusions of law and thereby is guilty of violating Section 466.028(1)(bb), Florida Statutes. For these violations Respondent is subject to the penalties set forth in Section 466.028(2), Florida Statutes. Based upon the discussion in Count IV, no violation has been established related to Rule 21G-14.04(4), Florida Administrative Code.

Upon consideration of the facts found and conclusions of law reached, it

is,

RECOMMENDED:

That a final order be entered which dismisses Counts I, II and IV and

imposes the following disciplinary action against William Terry Woodward's license to practice dentistry in Florida for violations in Counts III, V, VI, VII and VIII:

1. Dr. Woodward's license is suspended for a period of 10 years, of which he must serve the initial 2 years under active suspension.

   
   

2. Service of the remaining 8-year suspension is stayed pending satisfactory completion of an 8-year probation. Violation of that probation shall bring about the service of the remaining 8-year suspension.

   
   

3. During the course of the probation, Respondent shall not violate any statutes or rules related to his practice of dentistry in the state of Florida. As special conditions, during the probationary period, Dr. Woodward shall be attended by a third person at all times he is treating female patients and Dr. Woodward and all of his employees shall submit quarterly sworn affidavits to the Board of Dentistry related to compliance with the aforementioned condition.

DONE and ENTERED this 4th day of November, 1983, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1983.

COPIES FURNISHED:

Edward M. Booth, Esquire 2508 Gulf Life Tower Jacksonville, Florida 32207

Henry Coxe, III, Esquire

204 Washington Street Jacksonville, Florida 32202

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Varn, Executive Director Board of Dentistry

Department of Professional Regulation

130 North Monroe Street

Docket for Case No: 83-001472

Orders for Case No: 83-001472